Connie Rushford v. Juanita Caines, Executor, Estate of Curtis Fields

• Decision Date: 30 March 2001
• Docket Number: 01-LW-1129,00AP-1072
• Parties: Connie Rushford, Plaintiff-Appellant v. Juanita Caines, Executor, Estate of Curtis Fields, Deceased et al., Defendants-Appellees
• Court: Ohio Court of Appeals

Connie Rushford, Plaintiff-Appellant v. Juanita Caines, Executor, Estate of Curtis Fields Deceased et al., Defendants-Appellees

No. 00AP-1072

01-LW-1129 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

March 30, 2001

APPEAL from the Franklin County Court of Common Pleas, Probate Division.

John W Leibold, for appellant.

Kegler Brown, Hill & Ritter, R. Douglas Wrightsel and Mark R. Reitz, for appellee Juanita Caines, Executor.

Schottenstein, Zox & Dunn, Thomas J. Sigmund and Lisa S. Koo, for appellee Firstar Bank, N.A.

OPINION

BOWMAN J.

Curtis Fields died testate on December 30, 1999. On March 2, 2000, Fields' last will and testament was admitted to probate. Fields' sister, defendant-appellant Juanita Caines, is a beneficiary of Fields' estate and was appointed executor of his will. Defendant-appellee, Firstar Bank, N.A., is trustee of the trust that is the residual beneficiary of Fields' estate.

Plaintiff-appellant, Connie Rushford, filed a complaint to contest the will and a petition to determine heirship. Rushford, who is currently forty-three years old, alleges that she received an anonymous letter after Fields' death alerting her that she may be Fields' biological daughter. Rushford alleges that her mother confirmed that Fields may be Rushford's natural father. At the time of Rushford's conception and birth, her mother was married to Ray D. Blair. Rushford's birth certificate indicates that Blair is her father and, until she received the anonymous letter, Rushford assumed that Blair was her natural father. In her petition to determine heirship, Rushford sought to utilize blood samples from the decedent in order to establish paternity through DNA evidence. She also sought a determination that she is Fields' biological daughter and a determination that she is entitled to inherit Fields' estate pursuant to the statute of descent and distribution, R.C. 2105.06.

In its judgment, the probate court denied Rushford's request to release the decedent's DNA and granted Caines' motion to dismiss Rushford's complaint. According to the court, Rushford's petition is barred by R.C. 3111.05, which requires that paternity actions be brought within five years after the putative child reaches the age of eighteen. The probate court further concluded that Rushford lacked standing to contest the will.

On appeal, Rushford asserts the following assignments of error:

FIRST ASSIGNMENT OF ERROR

THE PROBATE COURT ERRED IN SUSTAINING THE MOTIONS TO DISMISS WILL CONTEST ACTION AND THE DETERMINATION OF HEIRSHIP ACTION.

SECOND ASSIGNMENT OF ERROR

THE PROBATE COURT ERRED IN FAILING TO APPLY THE DISCOVERY RULE TO THE STATUTE OF LIMITATIONS CONTAINED IN O.R.C. § 3111.05.

THIRD ASSIGNMENT OF ERROR

THE PROBATE COURT ERRED IN PREVENTING PLAINTIFF-APPELLANT FROM ESTABLISHING A FATHER-CHILD RELATIONSHIP BETWEEN DECEASED CURTIS FIELDS AND PLAINTIFF THROUGH THE MEANS OF DNA TESTING.

FOURTH ASSIGNMENT OF ERROR

THE ERROR OF THE PROBATE COURT IN DENYING PLAINTIFF-APPELLANT THE RIGHT TO ESTABLISH A PARENTAGE CONNECTION BETWEEN DECEASED CURTIS FIELDS AND PLAINTIFF WAS COMPOUNDED BY THE PROBATE COURT'S ERROR IN DENYING PLAINTIFF-APPELLANT THE RIGHT TO PROSECUTE A WILL CONTEST ACTION BECAUSE PLAINTIFF HAD NOT ESTABLISHED PARENTAGE.

FIFTH ASSIGNMENT OF ERROR

THE PROBATE COURT ERRED IN HOLDING THAT PLAINTIFF-APPELLANT, AN ILLEGITIMATE (NON-MARITAL) CHILD, HAS NO DIRECT PECUNIARY INTEREST IN HER FATHER'S ESTATE SUCH AS WILL PROVIDE HER STANDING TO PROSECUTE A WILL CONTEST ACTION.

SIXTH ASSIGNMENT OF ERROR

THE HOLDING OF THE PROBATE COURT THAT THE PLAINTIFF, BECAUSE SHE WAS A NON-MARITAL (ILLEGITIMTE) CHILD, DID NOT HAVE STANDING TO CONTEST HER ALLEGED FATHER'S WILL BECAUSE THE DECEASED ALLEGED FATHER HAD NOT TAKEN STEPS TO GRANT PLAINTIFF A RIGHT OF INHERITANCE AS REQUIRED UNDER OHIO CASE LAW WHILE O.R.C. SECTION 2105.17 WOULD GRANT PLANTIFF THE RIGHT OF INHERITANCE FROM AND THROUGH HER MOTHER EVEN THOUGH BORN OUT OF WEDLOCK, OPERATES TO VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

SEVENTH ASSIGNMENT OF ERROR

DENIAL TO [AN] ILLEGITIMATE (NON-MARITAL) CHILD OF STANDING TO PROSECUTE A WILL CONTEST ACTION DEPRIVES THAT CHILD OF EQUAL PROTECTION AND DUE PROCESS, IN VIOLATION OF THE UNITED STATES AND OHIO CONSTITUTIONS.

EIGHTH ASSIGNMENT OF ERROR

WHEN O.R.C. § 2105.17 OPERATES TO DEPRIVE AN ILLEGITIMATE (NON-MARITAL) CHILD OF HER STANDING TO PROSECUTE A WILL CONTEST ACTION AS TO HER FATHER'S WILL AND ESTATE, IT DENIES THE ILLEGITIMATE (NON-MARITAL) CHILD OF EQUAL PROTECTION OF LAW AND DUE PROCESS IN VIOLATION OF THE UNITED STATES AND OHIO CONSITUTIONS.

We affirm the judgment of the probate court, although for different reasons than those expressed by the court.

As an initial matter, we note that, although Caines characterized her motion as a motion to dismiss, pursuant to Civ.R. 12(B)(6), and the probate court granted the motion as if it were a motion to dismiss, a Civ.R. 12(B)(6) motion was untimely, as Caines had already filed an answer to Rushford's complaint. A motion to dismiss filed after the pleadings have closed, however, may be evaluated as a Civ.R. 12(C) motion for judgment on the pleadings. State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 569. A Civ.R. 12(C) motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion to dismiss, and the same standard of review is applied, both at the trial and appellate levels. Gawloski v. Miller Brewing Co. (1994), 96 Ohio App.3d 160, 163. We therefore conclude that the mischaracterization had no prejudicial effect on Rushford, and we proceed as if this case had been decided on a motion for judgment on the pleadings.

A judgment on the pleadings may be granted only if no material factual issues exist and the moving party is entitled to judgment as a matter of law. Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 403. Appellate review is de novo. Rich v. Erie Cty. Dept. of Human Resources (1995), 106 Ohio App.3d 88, 91.

We address Rushford's first, second, third, fourth and fifth assignments of error together, as they all relate to Rushford's argument that the probate court erroneously concluded that, as a matter of law, Rushford could not establish paternity or contest Curtis Fields' will.

In Ohio, a child born out of wedlock may only inherit from his natural father under certain circumstances. Prior to 1982, an illegitimate child could only inherit from his natural father if the natural father took one of the following affirmative steps: (1) formally acknowledging paternity in the probate court; (2) designating the illegitimate child as his heir-at-law; (3) adopting the illegitimate child; or (4) making a provision for the child in his will. Moore v Dague (1975), 46 Ohio App.2d 75, 76-77. In the instant action, it is undisputed that the decedent took...